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Accused terrorist Abd al-Rahim Hussein al-Nashiri has asked a federal court to stop his criminal proceedings at Guantanamo Bay, claiming the federal government is denying his right to qualified counsel during a death penalty case.

The motion was filed Nov. 1 in U.S. District Court for the District of Columbia, about two weeks after al-Nashiri’s civilian defense counsel, led by Indianapolis attorney Richard Kammen, quit apparently over concerns the government was listening to privileged conversations between the defendant and his attorneys. Al-Nashiri argued he should not be subjected to a trial by the military commission while he is not represented by qualified counsel.

As the memorandum in support of his motion asserted, “Petitioner’s right to qualified counsel in a capital case should not be denied because of a bureaucratic standoff for which he has no responsibility and no means of solving.”

That same memorandum provided more details on the circumstances that caused Kammen and his team to withdraw, and what has happened since. A second motion al-Nashiri filed today notes the presiding judge in his trial, Air Force Col. Vance Spath, sentenced Chief Defense Counsel, Marine Brig. Gen. John Baker, to 21 days of confinement for refusing to rescind his order excusing Kammen and his team.

The trouble started in June 2017 when Baker, chief defense counsel, told defense counsel that he had recently received information indicating the conversations between the defendants and their attorneys were not private.

The prosecution assured al-Nashiri’s counsel the “intrusion issue” did not impact the rooms where the defendant and his attorneys were meeting. However, the memorandum claims that the defense attorneys subsequently discovered evidence which “unambiguously contradicted the prosecution’s assurances.

“… (T)he evidence is compelling and would provide no reasonable attorney with confidence that they could maintain attorney-client confidentiality, when meeting in such spaces,” the memorandum stated.

An extensive footnote pointed out this was not the first time attorney-client privileged had been compromised. In previous years, privileged legal materials had been confiscated from detainees’ cells and correspondence between defense counsel and the clients was being read by the legal department at the Naval Base. Also, microphones were discovered to have been hidden in the smoke detectors placed in the rooms where the detainees met with their attorneys.

The intrusion apparently spread to electronic surveillance. Defense counsel discovered, “through a series of IT related failures,” that an unknown amount of privileged work product had been turned over to the prosecution and others in the government. In addition, the government was also monitoring the defense counsel’s internet use, prompting the chief defense counsel to prohibit the attorneys from using the Department of Defense networks to rely confidential information.

In September, Spath concluded al-Nashiri had no right to confidentiality when talking to his attorneys, with the exception that his communications would not be used against him in the military commission proceedings at Guantanamo Bay.

After consulting with Hofstra University School of Law professor Ellen Yaroshefsky on the ethical issue, Kammen and his team withdrew from the case. They said they were ethically bound to stop their representation.

However, Spath said he did not find “good cause” to release the defense team and recalled Kammen and his colleagues to return to Guantanamo Bay for previously scheduled hearings. When none of the civilian attorneys made an appearance, the prosecution demanded the hearings proceed anyway and asked the judge to hold the defense counsel in contempt.

Spath then decided to proceed regardless of whether al-Nashiri was represented by learned counsel. Also, the judge announced he was going to hold a contempt hearing against Baker on Nov. 1.

The defendant is still being represented by military counsel, Navy Lt. Alaric Piette, but the attorney has no experience in capital cases and, according to the memorandum, is reviewing his own ethical obligations on the issue of attorney-client privilege.

Al-Nashiri argues in his motion that under the Military Commissions Act, he has a right to learned counsel.

“The irreparable harms Petitioner faces are significant,” the memorandum states. “Col. Spath has announced on the record his intention to proceed not just through the witnesses that are expected to be called over the next few weeks, but all the way to final judgment, regardless of whether Petitioner is afforded his statutory and regulatory rights to learned counsel,” the memorandum states. “Such a blanket denial of the right to counsel in a capital case is extraordinary.”

Marilyn Odendahl covers the Indiana General Assembly as well as law schools and bar associations across the state for the Indiana Lawyer. Prior to joining the Indiana Lawyer, she was a reporter for nearly eight years at The Elkhart Truth, in Elkhart, Ind., where she primarily covered business. She holds degrees from Ball State University and the University of Louisville.